Conditions of validity of last will and testament for fetus in jurisprudence and Islamic law

Dadmarzi, Seyed Mahdi; Rezaei, Rouhollah

doi:10.30497/law.2018.2308

Conditions of validity of last will and testament for fetus in jurisprudence and Islamic law

Document Type : Research Article

Authors

qom university

10.30497/law.2018.2308

Abstract

The legal issue of last will and testament in favor of the fetus (unborn child), is one of the legal subjects which is fully discussed in Islamic Jurisprudence books. But in the Iranian Civil Code there are just two articles in this relation i.e. article 1851 and 1852. There is some controversies in relation to the conditions necessary for validity of this kind of last will and testament. Islamic jurisprudence scholars have generally stated three conditions for such last will and testament for the fetus to be valid. First of all, to benefit from civil rights in general and last will and testament in particular, the fetus must be in existence at the time at which the last will and testament is being made. Secondly the fetus must be born alive even though he or she dies immediately after birth. Finally, they maintain that the offer of the last will and testament needs to be accepted, otherwise it is not effective. This article is aiming to examine the necessity of these conditions.
The method used in this Article is descriptive-analytical. Data have been collected by taking notes from relevant sources and have been analyzed with regard to the views of Islamic Jurisprudence scholars and civil provisions. The findings of the contribution are: 1. There is no doubt about the validity of the will and testament in favor of the fetus. 2. The fetus must be in existence at the time at which the last will and testament is being made. 3. It is necessary for the validity of such last will that the fetus come into birth alive. 4. There is no need for last will and testament for the fetus to be accepted.

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